38 P.2d 274 | Mont. | 1934
This was an action brought to remove the defendant from the office of county commissioner of Flathead county. The complaint was in three counts. A general demurrer was sustained as to the first count and a special demurrer as to the second. The third count was dismissed on motion of the plaintiff. Thereafter, the plaintiff having declined to plead further, a judgment of dismissal was entered. The appeal is from the judgment. Error is assigned upon the court's rulings in sustaining the several demurrers.
Plaintiff, as county attorney of Flathead county, in his first cause of action alleged the election and qualification of the defendant as county commissioner and his continuance in that office; that he, in the month of February, 1931, as such officer "knowingly, wilfully and corruptly" presented a claim to the county for $16.50, and so collected the amount of the claim *173 from the county. A copy of the claim is an exhibit attached to the complaint and discloses the following items:
"Jan. 20-21-22 1931. To attending State Commissioners' Convention at Missoula and inspecting machinery.
Bus hire ................... $ 9.00 Meals ...................... 7.50 _______ 16.50"
It is further alleged that these services were not for the inspection of roads and bridges, nor for the attendance of meetings of the board of county commissioners, that defendant was not appointed by the board to attend the state convention, but that another member thereof was so designated, and that the fees were collected by defendant in his office as county commissioner.
In the second count it is alleged that defendant presented monthly bills and collected the same from the county. The items of various bills are set forth in detail. These bills are for some seventeen different dates, commencing with April 15, 1931, and ending February 11, 1932. One of them will illustrate the nature and character of all. The item of April 15, 1931, is as follows:
"To inspection Whitefish roads ........................ $ 8.00
"80 miles at 12 1/2c $10.00 Meal .50 ................... 10.50."
It was also alleged that "each of these items was illegally collected, in that each of said items calls for a distance at least ten miles in excess of the respective distances actually traveled by said A.N. Smith in the inspection of bridges and highways and proposed highways in Flathead county on said respective dates, and calls for expenses at least $1 in excess of the respective expenses actually incurred by said A.N. Smith in such inspection." The special demurrer was directed to the foregoing quotation upon the ground of uncertainty, in that it could not be ascertained therefrom whether any given item for mileage was illegal in its entirety, or what portion of such items was legal and in what amounts they were illegal. *174
It was further alleged that "no part of any of said items was for mileage or per diem for attendance upon any meeting of the board of county commissioners of Flathead county, nor for any other purpose for which a county commissioner may lawfully charge or collect fees except such parts thereof as are for the inspection of highways or bridges." The last-quoted paragraph was attacked by demurrer upon the ground of uncertainty, in that it cannot be ascertained as to what parts thereof it is claimed, or admitted, or alleged are proper "for the inspection of highways or bridges," and what parts thereof are illegal or improper, or alleged not to come within the allegations of "except such parts thereof as are for the inspection of highways or bridges."
We will first discuss the ruling on the general demurrer.[1] Public officers who are not subject to impeachment may be removed for misconduct or malfeasance only by indictment of a grand jury (sec. 11688, Rev. Codes 1921), and for nonfeasance or for the collection of illegal fees by accusation in writing. (Sec. 11702.) In the case of State v. Beazley,
The instant case was brought under section 11702, supra, the[2] pertinent portion of which reads as follows: "When an accusation in writing, verified by the oath of any person, is presented to the district court, alleging that any officer within the jurisdiction of the court has been guilty of knowingly, wilfully, and corruptly charging and collecting illegal fees for services rendered, or to be rendered, in his office, or has wilfully refused or neglected to perform the official duties pertaining to his office," the court shall proceed to issue citation and try the cause as therein provided. *175
The defendant argues that, since under the statute then in force (Chap. 48, Laws 1927) only one member of the board of county commissioners was entitled to his expenses and per diem during his attendance at a state meeting of county commissioners, and as the board in this instance had designated a member other than defendant to attend such meeting, the fees or money paid to defendant were not charged "for services rendered * * * in his office." The state of Idaho has an identical provision with our own, in so far as the pertinent portion thereof is concerned. The supreme court of that state in construing this section in the case of McRoberts v. Hoar,
The supreme court of Utah, in considering an identical statutory provision, is in accord with the Idaho court. (Law v.Smith,
This court in the case of State v. Story,
The case of State v. Borstad,
We think the only reasonable interpretation of the section in question is that adopted by the Idaho court. The North Dakota rule is unsound, as the statute would have the same meaning attributed to it under that rule, if the words "in his office" were entirely omitted. In construing statutes we are commanded not "to omit what has been inserted." (Sec. 10519, Rev. Codes 1921.)
The fees alleged to have been illegally received were not received by defendant for services rendered in his office. The demurrer to the first cause of action was properly sustained.
The rules of pleading obtaining in cases brought under section[3, 4] 11702, except as therein otherwise provided, are those applicable to ordinary civil actions. (State ex rel. King v.District Court,
Under the allegation as to mileage, plaintiff might prove that[5] no mileage was properly chargeable, or that only a small portion of the amount received, or only $1 of the specified amount, was illegal. Likewise the same latitude in the proof would obtain as to the other items of which complaint was made. If the proof offered by plaintiff was that various items in their entirety were illegal, more and different witnesses would be necessary to prove an entire item than would be required to sustain an item under attack in part. Such a pleading does not notify the adverse party of the *177 probable scope of the proof he will be required to meet. Hence the pleading was vulnerable to a special demurrer.
Judgment affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES ANGSTMAN, MATTHEWS and STEWART concur.
